Holland & Knight LLP

Validez de prueba de alcoholemia a trabajadores

La Corte Suprema de Justicia en Sala de Casación Laboral publicó en febrero de 2015, mediante la sentencia No. 38381 del 18 de junio de 2014, algunos puntos importantes sobre la validez de la prueba de alcoholemia a los…more

Columbia

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Legislative Alert: Illinois House of Representatives Passes HB 924

On April 18, 2013, the Illinois House of Representatives passed House Bill 924 on a 60–50 vote. The bill amends the Illinois Prevailing Wage Act (820 ILCS 130/2) to require that all contractors and subcontractors bidding on work…more

Contractors, New Legislation, Reporting Requirements, Subcontractors

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Religious Institutions Update: March 2015

Several interrelated legal developments make it more important than ever for religious institutions intending to qualify for exemptions to generally applicable laws to do the hard work before litigation or administrative inquiry…more

Child Abuse, Contraceptive Coverage Mandate, Contraceptives, Corporate Governance, Exemptions

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New California Labor and Employment Laws for 2015

Like most recent years, the California Legislature passed and Governor Jerry Brown signed many labor and employment bills into law once again in 2014. Below are highlights of the most significant new laws. Each will become…more

Discrimination, Employer Liability Issues, Employer Mandates, Jerry Brown, Joint Employers

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Delaware Federal Court Dismisses Say-on-Pay Complaint

In a recent opinion, the United States District Court for the District of Delaware dismissed a derivative complaint brought as a result of a negative shareholder advisory vote on executive compensation. The court found that the…more

Derivative Suit, Dodd-Frank, Executive Compensation, Say-on-Pay, Shareholder Votes

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Supreme Court Upholds Reasonable Contractual Limitations Period in ERISA Plan

The U.S. Supreme Court has ruled unanimously that certain statute of limitations provisions in employer-sponsored benefit plans are enforceable, even when they begin to run before the plan's administrative process has been…more

Employee Benefits, ERISA, Heimeshoff v. Hartford Life & Accident Insurance Co., SCOTUS, Statute of Limitations

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FDA Issues New Drug Compounding and Outsourcing Facility Guidance - The New Policy Documents Clarify FDA's Expectations and Enable the Compounding Industry to Comply with the Compounding Quality Act

The FDA issued multiple policy documents on July 1, 2014, to implement the Compounding Quality Act (CQA). Congress enacted the CQA in November 2013 as part of the Drug Quality and Security Act (DQSA), in response to the deadly…more

DQSA, Drug Compounding, FDA, Pharmaceutical, Prescription Drugs

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District Court Evaluates Express Warranty of "Airworthiness" - Texas Court Determines That "Airworthy" Is an Unambiguous Term That Controls Over More General Disclaimers of Warranties

In Luig v. North Bay Enterprises, Inc., a Texas District Court recently considered a seller's obligation to deliver an "airworthy" aircraft in the context of an aircraft purchase agreement that also contained an "as is" clause…more

Aircraft, Aircraft Sales, Counterclaims, Express Warranty, Purchase Agreement

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New Government Contractor Regulations Define and Prohibit Workplace Sexual Bias - The Guidelines Are in Fact Requirements for Federal Government Contractors, Subcontractors, and Federally Assisted Construction Contractors and Subcontractors

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has proposed the first major substantive changes to its Sex Discrimination Guidelines in more than 40 years. The new regulations are significant in…more

Discrimination, DOL, Employer Liability Issues, Employer Mandates, Federal Contractors

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Supreme Court Will Hear Case on ACA Health Insurance Tax Credits

On Nov. 7, 2014, the U.S. Supreme Court announced that it will hear the case of King v. Burwell, one of multiple challenges to the validity of the premium tax credits provided under the Affordable Care Act (ACA) to individuals…more

Affordable Care Act, Halbig v Burwell, Health Insurance Exchanges, Healthcare Reform, Healthcare.gov

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Florida Legislature Offers Permit and Development Order Extension Opportunity - Written Notification Due to the Authorizing Agency by Dec. 31, 2014

During the 2014 Regular Session, the Florida Legislature enacted a measure providing holders of certain specific development approvals an opportunity to seek a two-year extension for these approvals. Any building permit and any…more

Building Permits, Construction Industry, Extensions, Real Estate Development, Relief Measures

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Religious Institutions Update: March 2013

In this Issue: - Key Cases - Court Upholds Permitting, Licensing and Zoning Regulation of Spiritual Counselors - Non-Liturgical Navy Chaplains Denied Injunctive Relief for Statistical Imbalance in…more

Affordable Care Act, Catholic Church, Contraceptive Coverage Mandate, Establishment Clause, IRS

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DOJ Shifts Stance on False Statements Prosecutions - A Change That Could Have a Major Impact on Future White Collar Investigations and Prosecutions

The U.S. Department of Justice (DOJ) recently adopted a more defense-friendly position on criminal prosecutions under a commonly used federal charging statute, Section 1001. This statute makes it a crime to "knowingly and…more

Criminal Prosecution, DOJ, Enforcement, Enforcement Actions, False Statements

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Decisions Do Not Apply "Jewel Doctrine" to Departed Partners' Fees - Legal Fees Earned by Departed Partners in Now-Defunct Law Firms Determined Not to Be Property of the Bankrupt Firm

A California District Court recently held that a bankruptcy trustee could not claim a property interest in the hourly fee matters pending at the now-dissolved Heller Ehrman LLP law firm. This June California decision was…more

Business Assets, Commercial Bankruptcy, Dissolution, Heller Ehrman, Insolvency

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Amendments to California False Claims Act Expand Potential Exposure to Government Investigations and Litigation

On September 27, 2012, Governor Jerry Brown signed into law Assembly Bill 2492 (AB 2492), which amends the California False Claims Act (CFCA). These amendments closely align the CFCA with the federal False Claims Act (FFCA). The…more

Attorney Generals, Compliance, False Claims Act, FERA, Whistleblowers

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FDA Issues New Drug Compounding and Outsourcing Facility Guidance - The New Policy Documents Clarify FDA's Expectations and Enable the Compounding Industry to Comply with the Compounding Quality Act

The FDA issued multiple policy documents on July 1, 2014, to implement the Compounding Quality Act (CQA). Congress enacted the CQA in November 2013 as part of the Drug Quality and Security Act (DQSA), in response to the deadly…more

DQSA, Drug Compounding, FDA, Pharmaceutical, Prescription Drugs

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Qualifying Loans Will Reduce or Eliminate Risk Retention Obligations of Issuers Under Reproposed Credit Risk Retention Rules

The general risk retention requirements mandated under section 15G of the Securities and Exchange Act of 1934 (added by section 941 of the Dodd-Frank Act) will be applicable to all issuers of asset-backed securities (ABS) once…more

Asset-Backed Securities, Dodd-Frank, Risk Retention, Securities Exchange Act, Underwriting

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Administrative Law Judge Rules Camera-Equipped Model Airplanes Are Cleared for Take-Off

A ruling by an administrative law judge punches a hole through the FAA's ban on the unlicensed use of commercial drones. The decision may be significant for ongoing discussions in Congress and in Indian Country about drone…more

Drones, FAA, Natural Resources, Surveillance, Tribal Lands

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FinCEN Doubles Down on Casinos with Heightened Regulatory Expectations - Casino Managers and Tribal Gaming Commissioners Need to Be Proactive with Anti-Money Laundering Compliance Initiatives

For the second time in nine months, Financial Crimes Enforcement Network (FinCEN) Director Jennifer Shasky Calvery has publicly addressed FinCEN's increasing concerns regarding casino compliance with the Bank Secrecy Act (BSA),…more

Anti-Money Laundering, Audits, Casinos, FinCEN, Indian Gaming

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House Bill Seeks to Limit Certain Provisions of Dodd-Frank

On Jan. 14, 2015, the effort to repeal or amend certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) continued in the heavily Republican House of Representatives with the…more

CFTC, Collateralized Loan Obligations, Commodities Exchange Act, Dodd-Frank, Legislative Agendas

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Second Circuit Ends "Doing Business" Test in New York for General Jurisdiction - The Court Adopts the "Essentially at Home" Test Limiting New York Courts’ General Jurisdiction Over Foreign Corporations

In September 2014, the Second Circuit abrogated the nearly century-old "doing business" test used by New York courts in deciding whether general jurisdiction exists over foreign corporations. In Gucci America, Inc. v. Weixing…more

Banks, Doing Business, Foreign Corporations, Jurisdiction

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Expatriation: Opportunities in a Mist of Uncertainty, Journal of International Taxation - Dec 2014

Expatriation - Expatriation: Opportunities in a Mist of Uncertainty - Almost six years after the tax rules on expatriation were materially changed, a lack of official guidance has left several issues that are both…more

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Annual U.S. Green Card Lottery for Diversity Immigrants Opens Oct. 1, 2014: The Green Card Lottery Allows Many Foreign Nationals to Apply for the Opportunity to Get a Green Card Independent of Work or Family

The U.S. Department of State's Diversity Visa 2016 Immigrant Visa Program (more commonly referred to as the "Green Card Lottery") begins Wednesday, Oct. 1, 2014, at 12:00 p.m. EDT and ends Monday, Nov. 3, 2014, at 12:00 p.m…more

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DOJ Criminal Division Renews Efforts to Investigate Whistleblower Allegations

The Department of Justice (DOJ) has signaled a heightened effort to bring criminal prosecutors into the loop regarding False Claims Act referrals and other whistleblower complaints. In recent remarks at a conference comprised…more

Corporate Counsel, Criminal Prosecution, DOJ, False Claims Act, Health Care Providers

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New Jersey Bankruptcy Court Decision Protects Rights of Trademark Licensees - "Free and Clear" Sale of a Trademark or Intellectual Property License Under Section 363 Does Not Trump Rights of Third Party Licensees under Section 365

The United States Bankruptcy Court for the District of New Jersey issued an opinion in In re Crumbs Bake Shop, Inc., No. 14-24287-MBK that provides significant protections for trademark licensees. The opinion was issued on Oct…more

Chapter 11, Commercial Bankruptcy, Executory Contracts, IP License, Licenses

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Protecting Against Cyber Risk - A Primer on Cyber Insurance

There was no shortage of stories about massive data breaches in 2014 and things likely won't slow down in 2015. As these stories continue to grow in number, corporate America has started to explore ways to insure against this…more

Commercial General Liability Policies, Corporate Counsel, Cyber Insurance, Cybersecurity, D&O Insurance

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Bitcoin Reportability and Taxation

June 30 is the deadline for taxpayers with a connection to foreign financial accounts to file FinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR). As this is the first year in which all FBARs must be…more

187, Bitcoins, FBAR, FinCEN, Foreign Bank Accounts

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Governor Signs Bill Regulating Retainage on Private Construction Projects - The New Retainage Law Bolsters the Mass. Construction Industry, Promotes Development and Improves Contractors' Cash Flows

On Aug. 8, 2014, Gov. Deval L. Patrick signed into law "An Act Relative to Fair Retainage Payments in Private Construction." Massachusetts now joins numerous other jurisdictions in the regulation of retainage on private…more

Construction Contracts, Construction Disputes, Construction Litigation, Contractors, Retainage

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Top 10 Indian Tribal Tax Developments in 2013 and Priorities for 2014

In 2013, courts were active in issues relating to Indian tribes, including ruling on state tax matters and the federal income tax aspects of Section 17 corporations. The top 10 Indian tribal tax developments from 2013 and…more

Casinos, General Welfare Exclusion, Income Taxes, Indian Gaming, IRS

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New Executive Order to Increase Minimum Wage Under Future U.S. Government Service Contracts and Subcontracts

As promised in his recent State of the Union Address on February 12, 2014, President Obama signed an executive order to increase to $10.10 the hourly minimum wage paid to federal contractors and subcontractors. The Executive…more

Davis-Bacon Act, Federal Contractors, FLSA, Minimum Wage, Service Contract Act

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Florida Introduces Stringent Obligations with New Data Breach Law

In the wake of increasing pressure due to data breaches, Florida is introducing a stringent new data breach law to protect its residents from identity theft and financial harm. The new Florida Information Protection Act of 2014…more

Data Breach, Data Protection, FIPA, Identity Theft, New Legislation

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MAP-21: What Business Members Need To Know

Originally published in Business In Motion, October 2012. More than thirty-three months late, Congress adopted a two-year surface transportation bill, Moving Ahead for Progress for the 21st Century (MAP-21). While funding…more

MAP-21, Surface Transportation, Surface Transportation Board

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New Government Contractor Regulations Define and Prohibit Workplace Sexual Bias - The Guidelines Are in Fact Requirements for Federal Government Contractors, Subcontractors, and Federally Assisted Construction Contractors and Subcontractors

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has proposed the first major substantive changes to its Sex Discrimination Guidelines in more than 40 years. The new regulations are significant in…more

Discrimination, DOL, Employer Liability Issues, Employer Mandates, Federal Contractors

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Employment Classification Lessons Learned From Scantland v. Jeffry Knight Inc.

A recent Eleventh U.S. Circuit Court of Appeals decision issued a strong admonition to employers: the misclassification of workers as independent contractors rather than employees may have serious financial and operational…more

DOL, Employee Rights, Employer Liability Issues, FLSA, Full-Time Employees

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NLRB Adopts Expedited Union Election Procedures - Differing Views on the Shortened Time Frame and Other New Procedures Reflect the Sharply Divided NLRB

Effective April 14, 2015, the long-standing election procedures to resolve questions concerning union representation will be truncated to facilitate what a number of commentators critical of the changes refer to as "ambush…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

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ICANN's Trademark Clearinghouse Set to Launch on March 26, 2013

The Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit corporation responsible for managing the domain name system, is evaluating more than 1,900 applied-for generic top-level domains (gTLDs), such as…more

gTLD, ICANN, Trademark Clearinghouse, Trademarks

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Jury to Decide SEC's Case Against Feeder Fund in Ponzi Scheme

The SEC's case against a hedge fund owner who allegedly funneled hundreds of millions into a $3.5 billion Ponzi scheme will be left up to a jury to decide. U.S. District Judge Ann D. Montgomery declined both sides' motions for…more

Feeder Funds, Hedge Funds, Investors, Jury Trial, Ponzi Scheme

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A New Reality for ESOP Fiduciaries - Company Stock Investments for Employee Participants in Retirement Plans of Public and Privately Held Companies Have Different Operating Requirements

For the ESOP fiduciary of a publicly traded employer, the Supreme Court has made clear that non-public insider information is not required to be used in reaching a decision to buy, hold or sell employer securities…more

401k, Employee Benefits, ESOP, FIfth Third Bancorp v Dudenhoeffer, Retirement

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Statutory Limit on Change Orders Bars Contractor Claim in Virginia

A recent Virginia case strictly construing a statutory limit on the amount of contract change orders has raised concerns among contractors doing business with Virginia state and local agencies. In Carnell Construction Corp. v…more

Change Orders, Construction Contracts, Construction Disputes, Construction Industry, General Contractors

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Second Circuit Vacates Pharmaceutical Misbranding Conviction on Free Speech Grounds

After two years of deliberation, the U.S. Second Circuit Court of Appeals has finally issued its decision in United States v. Caronia, holding that the government cannot prosecute pharmaceutical manufacturers or their…more

Caronia, Commercial Speech, FDCA, First Amendment, Free Speech

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The 30-Year Programmatic Eagle Take Permit: How Much Certainty Does It Provide?

The U.S. Fish and Wildlife Service issued a final rule that takes limited action to extend the maximum life of programmatic eagle take permits to 30 years, provides for permit transferability, and sets processing and…more

Endangered Species, Fees, Fish and Wildlife Service, Incidental Take Permits, Mitigation

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IRS Denies Exempt Status under Section 501(c)(4) For Too Much Political Activity

Earlier this year, while Washington was fixated on former Internal Revenue Service (IRS) employee Lois Lerner and her missing emails, her former employer quietly denied the application for exemption of an organization seeking…more

501(c)(4), Exempt Organizations, IRS, Political Campaigns

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Attorney Withdrawal: Protect the Client, Obey the Court or Go to Jail? - California Formal Op. No. 2015-192 Addresses the Ethical Tensions in Mandatory Withdrawal Between Duties to the Court and Duties to Maintain Client Confidences

In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a…more

Attorney-Client Privilege, Confidentiality, Ethics, Legal Ethics

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Amendment to Illinois FOIA Impacts Requests for Records Available Online - Public Bodies Now Have More Authority Regarding Their Records Available Online, Voluminous Requests and Fees Charged to Commercial Requesters

The Illinois General Assembly overrode Gov. Pat Quinn's veto of House Bill 3796 amending the Illinois Freedom of Information Act on Dec. 3, 2014. HB 3796 is now law, effective immediately. The key provisions of HB 3796…more

Amended Legislation, FOIA, Public Entities

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Key Factors of a Computer Digital Account (CDA) Plan to Protect Your Legacy

Increasingly, we interact with the world around us through digital devices and social media. Compared to decades past, our most essential information is now stored on a computer or hand-held device. Everything can now be done…more

Digital Assets, Electronically Stored Information, Estate Planning

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FinCEN's Busy August Yields Noteworthy Anti-Money Laundering Developments

August was a busy month for the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN). Among other initiatives, FinCEN issued its long-awaited proposed regulations on customer due diligence (CDD)…more

Advisory Opinions, AML/CFT, Anti-Money Laundering, Bank Secrecy Act, Compliance

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U.S. Supreme Court May Require Notice-and-Comment On More Agency Actions

On December 1, 2014, the Supreme Court heard oral argument in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association to address whether a federal agency must engage in notice-and-comment rulemaking…more

Administrative Procedure Act, DOL, Exempt-Employees, FLSA, Mortgage Bankers Association

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Proposed Anti-Human Trafficking Rule Could Significantly Affect Contractor Compliance Programs

U.S. government contractors and subcontractors may need to comply with two new federal procurement rules proposed by the Obama administration to prevent the use of forced labor. Affected companies should review and update…more

Forced Labor, Human Rights, Human Trafficking, NDAA, Supply Chain

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Recent Illinois Foreclosure Decisions Favor Lenders

Since 2008, lenders in Illinois have faced heightened scrutiny and a sharp rise in lender liability claims. Nevertheless, Illinois appellate courts have recently favored lenders by upholding existing statutory protections and…more

Foreclosure, Mortgages, Professional Liability

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Multas por Incumplimiento de las Normas de Seguridad y Salud en el Trabajo

El Ministerio del Trabajo mediante el decreto 472 de 2015 reglamentó los criterios de graduación de las multas a las compañías, conforme a la obligación impuesta por el artículo 13 de la ley 1562 de 2012, cuando estas infrinjan…more

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The New York Non-Profit Revitalization Act of 2013

Governor Cuomo signed New York's Non-Profit Revitalization Act of 2013 into law in December. Most of its provisions take effect July 1, 2014. The new law, which was designed to stimulate New York's not-for-profit industry,…more

Audits, Executive Compensation, Exempt Organizations, Non-Profits, Transparency

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2013 Florida Legislative Session Recap

Prior to the start of the 2013 Florida legislative session, President Gaetz and Speaker Weatherford outlined a joint agenda that included tackling ethics, elections, campaign finance, state pensions and higher education. The…more

New Legislation, Proposed Legislation, State Budgets

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DIAN - Nuevos Grandes Contribuyentes Año 2015

Por medio de la Resolución número 000267 del 31 de diciembre de 2014, publicada en el Diario Oficial No. 49381, la Dirección de Impuestos y Aduanas Nacionales – DIAN, estableció los nuevos contribuyentes, responsables y agentes…more

Columbia

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Justice Department Settlement Casts Doubt on Mandatory Medical Leave - Universities Should Be Well Trained in ADA Compliance and Best Practices for Students with Mental Health Concerns

On Jan. 12, 2015, the U.S. Department of Justice announced a settlement with Quinnipiac University, a private institution located in Connecticut, to resolve allegations that the university violated the Americans with…more

ADA, DOJ, Medical Leave, Mental Illness, Quinnipiac Universtiy

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Federal Maritime Commission Proposes New Rules for Ocean Transportation Intermediaries

On May 31, 2013, the United States Federal Maritime Commission (FMC) issued a wide-ranging proposed rulemaking significantly affecting the licensing, financial responsibility and duties of Ocean Transportation Intermediaries…more

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U.S. Department of Education Publishes Final Campus Security Rules

The U.S. Department of Education (DOE) published final regulations implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), including the Campus Sexual Violence Act (Campus SaVE). The regulations were released…more

Colleges, Department of Education, Final Rules, Reporting Requirements, Universities

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Appropriations Hearing on the Bureau of Indian Affairs/Indian Health Service Budget Request

On April 24 at 9:30 a.m. and 1:00 p.m., and on April 25 at 9:30 p.m., the House Appropriations Subcommittee on Interior, Environment, and Related Agencies will hold three separate American Indian and Alaska Native Public and…more

Native American Issues, Testimony

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Foreclosure Law – A Brief Overview Of California's One Action Rule And Anti-Deficiency Provisions

California’s one-action rule and anti-deficiency provisions (together, the "anti-deficiency provisions") protect borrowers that have defaulted on debt secured by real property. Those provisions limit the remedies available to…more

Anti-Deficiency Provisions, Foreclosure, One-Action Rule

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New Maryland Law Provides Indemnity Deeds of Trust (IDOT) Relief

Maryland Governor Martin O'Malley has signed a law that brings significant changes to how recordation tax will be imposed on the refinancing of commercial property and on the modification of existing indemnity deeds of trust…more

Commercial Loans, IDOT, Tax Exemptions

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SEC Proposes Rules for Pay Ratio Disclosure

At an open meeting on September 18, 2013, the Securities and Exchange Commission (SEC) approved for public comment proposed "pay ratio" disclosure rules to implement Section 953(b) of the Dodd-Frank Wall Street Reform and…more

CEOs, Disclosure Requirements, Dodd-Frank, Executive Compensation, Pay Ratio

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SEC Lifts Ban on General Solicitation and Advertising in Private Placements

Until Congress passed the Jumpstart Our Business Startups Act (JOBS Act) in April, 2012, those seeking to raise capital through the sale of securities in transactions not registered with the U.S. Securities and Exchange…more

Advertising, General Solicitation, JOBS Act, Marketing, Private Equity

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Florida Appellate Court: Open Meetings Law Applies to Collective Bargaining

In a crucial victory for transparency, a Florida state appeals court ruled that the state's open meetings law will not "condone hiding behind federal mediation" when municipal governments try "to thwart the requirements of the…more

Mediation, Municipalities, Open Meetings Act, Public Entities, Settlement Agreements

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Florida Enacts a New Revised Limited Liability Company Act

On May 3, 2013, as the last act of the 2013 Florida Legislature, the House passed into law the new Florida Revised Limited Liability Company Act (the "New LLC Act") in the form of Senate Bill 1300, and as amended, House Bill…more

Amended Legislation, LLC, New Legislation, RULLCA

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FTC Focuses on Emerging Technologies Amid Congressional Efforts to Expand Data Security Enforcement

Monday the Federal Trade Commission’s (FTC) Bureau of Consumer Protection (BCP) announced the creation of the Office of Technology Research and Investigation (OTRI), a new initiative focused on consumer protection in emerging…more

FCC, FTC, Jurisdiction, Proposed Legislation, Technology

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IRS Extends FATCA Registration Deadline to May 5, 2014

HIGHLIGHTS: - Foreign financial institutions must perform due diligence to identify their U.S.-owned accounts and report them to the IRS, as well as act as a withholding agent for payments to other foreign entities…more

Banks, Due Diligence, FATCA, FFI, Foreign Banks

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Court Rules Article Reporting About "False Testimony" Not "Actual Malice"

A Maryland court dismissed a defamation lawsuit against a newspaper, filed by a former chief deputy state's attorney, over articles reporting that he had given "false testimony" about a murder investigation. The articles in the…more

Actual Malice, Defamation, False Statements

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2014 Legislative Update: Environment, Growth Management and Water

CS/CS/CS/HB 325 amends statutory provisions relating to the brownfield program and modifies the procedures for establishing a brownfield area. The bill also authorizes the local government designating a brownfield area to use a…more

Brownfield Properties, Legislative Agendas, Pending Legislation, Proposed Amendments, Proposed Legislation

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SBA Proposed Rule Outlines New Mentor-Protégé Program for All Small Businesses - Impacts to All SBA Contracting Programs, Including 8(a) Business Development, HUBZone, Women-Owned Small Business (WOSB) and Service-Disabled Veteran Owned (SDVO) Small Business Programs

The Small Business Administration (SBA) issued a long-awaited notice of proposed rule-making (NPRM) providing for a new mentor-protégé program that will be available to all small businesses. The proposed rule was released on…more

HUBZone, Mentor-Protege Program, NPRM, SBA, SDVO

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White House Releases Draft Consumer Privacy Bill of Rights

Friday, the Obama Administration released a draft Consumer Privacy Bill of Rights Act, aimed at establishing baseline protections for individual privacy in the commercial world. If enacted, the bill would preempt state law and…more

Consumer Privacy Bill of Rights, FTC, Obama Administration, Proposed Legislation

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New York to Drastically Change "Gift Tax" Rule

Currently, there is no gift tax in New York, and although the amount of lifetime taxable gifts made by a New Yorker may cause the estate tax rate to increase, there is no additional estate tax paid on those gifts. New York…more

Estate Planning, Estate Tax, Gift Tax

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The Fish Tale and the Supreme Court: How Applying Sarbanes-Oxley to Missing Grouper Has Raised Questions of Overcriminalization

The Issues - On November 5, 2014, the Supreme Court heard arguments in Yates v. United States of America. In layman's terms, the issue is whether an Enron-era antishredding provision of the Sarbanes-Oxley Act was wrongly…more

Destruction of Evidence, Evidence, Fishing Industry, Sarbanes-Oxley, SCOTUS

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Local Government: Illinois Open Meetings Act Update

With the enactment of P.A. 097-0827 and a recently issued binding Attorney General Opinion, July has been a busy month for the Illinois Open Meetings Act, 5 ILCS 120/1, et seq…more

Open Meetings Act

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New York District Court Limits the Applicability of the PSLRA's Safe Harbor

A U.S. District Court for the Southern District of New York recently found that a company that had provided lower earnings guidance in its statements to the public than its results from the previous year was not protected by the…more

Fashion Design, PSLRA, Safe Harbors

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White House Summit on Cybersecurity and Consumer Protection

Many of the nation's leading cyber, data and privacy experts convened Friday at a White House Summit at Stanford University to discuss ways to improve our nation's cybersecurity. During the summit, President Obama signed an…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, Data-Sharing

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Expanded Tribal Bond-Issuing Authority: IRS Issues New Guidelines on Tribal Economic Development Bonds

On July 16, 2012, the IRS released Notice 2012-48, which solicits applications for the allocation of available amounts of national bond issuance authority limitation (volume cap) for Tribal Economic Development Bonds (TEDBs)…more

IRS, Tribal Economic Development Bonds

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"Hey, Take It Outside!" — Politics in the Workplace

Everyone has experienced "workplace politics" (in which Type A employees claw their way to the top while attempting to crush or humiliate coworkers) as well as "politics in the workplace" (in which employees argue about…more

Discrimination, NLRA, NLRB, Political Expression

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Revised Hart-Scott-Rodino Thresholds Effective February 20, 2015

Revised thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) have been announced by the Federal Trade Commission (FTC), effective for transactions closing on or after Feb. 20, 2015. Section 7A of the…more

Filing Fees, FTC, Hart-Scott-Rodino Act, juris, Threshhold Requirements

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Consumer Protection Agencies Agree to Coordinate Investigation Strategy - FTC and CFPB Reauthorize Memorandum of Understanding

On March 12, 2015, the Federal Trade Commission (FTC) and Consumer Financial Protection Bureau (CFPB), the two agencies in charge of the federal government's consumer protection mission, reauthorized their Memorandum of…more

CFPB, Data-Sharing, Enforcement, Enforcement Actions, FTC

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What Employers Need to Know About the Expanded Massachusetts Parental Leave Act

On Jan. 7, 2015, then-Governor Deval Patrick signed the Parental Leave Act into law, extending parental leave to male employees in connection with the birth or adoption of a child. The amendment – which becomes effective on Apr…more

Amended Legislation, Deval Patrick, Employee Rights, Parental Leave

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It’s Time to Re-Think the False Claims Act

The federal False Claims Act (FCA) is one of the government’s primary weapons in combating fraud by federal contractors, federal grantees and recipients of federal benefits. Since 1986, when the FCA was restructured into its…more

Enforcement, Enforcement Actions, False Claims Act, Federal Contractors, Fraud

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A Warning to Issuers: SEC Charges City and Two Officials with Fraud

In a first-time use of the Dodd-Frank Act, the U.S. Securities and Exchange Commission (SEC) has charged Allen Park, Mich., its former mayor and its former city administrator with fraud in connection with $31 million in…more

Dodd-Frank, Enforcement Actions, Municipal Securities Issuers, Popular, Public Officials

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D.C. Department of Environment Proposes Higher Stormwater Management Fees - Proposed Increases Are Based on Outdated Data and May Be Too High

The District Department of the Environment (DDOE) recently announced proposed increases to its fees established under the new Stormwater Management, Soil Erosion, and Sediment Control Regulations (Stormwater Rules). The…more

Environmental Policies, Storm Water

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The Business Records Exception As It Applies to Prior Loan Servicer Records - January 2015 Fourth District Court Ruling Provides Much-Needed Clarity

Last week, in Bank of New York v. Andrew Calloway, the Fourth District Court of Appeals provided some long-awaited clarity to the business records exception as it relates to a prior loan servicer's records under Florida law. In…more

Business Records, Consumer Lenders, Exceptions, Lenders, Loan Servicer

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Division of Corporation Finance Posts Slides Discussing Common Financial Reporting Issues for Smaller Companies

The Division of Corporation Finance (the "division") of the United States Securities and Exchange Commission (SEC) recently posted slides from an annual presentation at the Forum on Auditing in the Small Business Environment…more

Disclosure Requirements, Financial Reporting, PCAOB, Reporting Requirements, SEC

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Sequestration Tango: Taking Steps to Assess Risk and Mitigate Impacts

Many federal contractors and subcontractors are in store for a bumpy ride. On March 1, 2013, sequestration went into effect, requiring the federal government to cancel $85 billion in budgetary resources between now and September…more

Contractors, OMB, Risk Assessment, Spending Cuts

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FEC Increases Contribution Limits for 2015-2016 Election Cycle

Today, the Federal Election Commission announced that pursuant to the Federal Election Campaign Act (FECA), as amended, it was adjusting contribution and expenditure thresholds and the lobbyist bundling threshold for federal…more

Campaign Contributions, Federal Election Commission, PACs

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U.S. Imposes Further Sanctions on Russia and the Crimea Region - President Obama's Executive Order Mainly Targets the Activities of U.S. Persons

Executive Order Relating to the Crimea Region - On Dec. 19, 2014, in a step coordinated with similar sanctions imposed by the European Union (EU), President Obama issued a new Executive Order targeting the Crimea Region…more

Banking Sector, Barack Obama, Crimea, Defense Sector, Energy Sector

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Avoiding and Defending Florida License Tax Audits

Florida hotels and restaurants are facing license tax audits, assessments and penalties in increasing numbers. A "license" is statutorily defined as the granting of a privilege to use or occupy a building or real property…more

Audits, Corporate Taxes, Hotels, Licenses, Resorts & Restaurants

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Attorney Withdrawal: Protect the Client, Obey the Court or Go to Jail? - California Formal Op. No. 2015-192 Addresses the Ethical Tensions in Mandatory Withdrawal Between Duties to the Court and Duties to Maintain Client Confidences

In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a…more

Attorney-Client Privilege, Confidentiality, Ethics, Legal Ethics

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U.S. Supreme Court May Require Notice-and-Comment On More Agency Actions

On December 1, 2014, the Supreme Court heard oral argument in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association to address whether a federal agency must engage in notice-and-comment rulemaking…more

Administrative Procedure Act, DOL, Exempt-Employees, FLSA, Mortgage Bankers Association

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Judge Dismisses "Fun Center" Defamation Lawsuit

A Tallahassee, Fla., trial court has thrown out a defamation suit against a television station, filed by an amusement center concerning reports about a police investigation…more

Defamation, Pre-Suit Notice, Television Broadcast Stations

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U.S. Treasury and Commerce Release Revised Cuba Sanctions Regulations

A pre-release of the revised regulations from the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce Bureau of Industry and Security (BIS) identifies the extensive changes in…more

BIS, Cuba, Foreign Relations, OFAC, Sanctions

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Illinois Appellate Court Narrows Attorney General's FOIA Opinion on Communications on Elected Officials' Private Devices

On July 16, 2013, the Appellate Court of Illinois for the Fourth District issued an opinion in City of Champaign v. Madigan, 2013 IL App (4th) 120662, that upheld the Illinois Attorney General's (AG) binding opinion (Public…more

Attorney Generals, Electronically Stored Information, Email, FOIA, Mobile Devices

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New California Employment Laws for 2014: What Your Business Needs to Know

The California Legislature enacted numerous employment laws in 2013 that affect California employers. The significant changes initiated by these statutes include a higher minimum wage, increased whistleblower protections and new…more

Employment Policies, State Immigration Laws, Wage and Hour, Whistleblower Protection Policies

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In Town Of Greece, U.S. Supreme Court Affirms Constitutionality Of Prayer At Town Meetings

HIGHLIGHTS - - Local governments in Illinois and around the country should become knowledgeable about the U.S. Supreme Court's ruling this week in Town of Greece v. Galloway. - In its 5-4 ruling, the Court declared…more

Establishment Clause, First Amendment, Greece v Galloway, Prayer, Public Meetings

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OSHA Revises Rule on Injury and Illness Reporting and Recordkeeping - What Employers Need to Know Now About the Changes Effective Jan. 1, 2015

On Jan. 1, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) final rule takes effect requiring employers to notify OSHA within eight hours, when an employee is killed on the job; and…more

Bodily Injury, OSHA, Recordkeeping Requirements, Reporting Requirements, Workplace Injury

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Time Spent in Employer-Mandated Security Checks Held Non-Compensable: U.S. Supreme Court Decision in Integrity Staffing Solutions, Inc. v. Busk Was Unanimous

In a recent U.S. Supreme Court decision, a unanimous court held that time spent by employees in mandatory security checks after work is not compensable, unless the screenings are "integral and indispensable" to the principal…more

Amazon, DOL, FLSA, Integrity Staffing v Busk, Internet Retailers

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The New York Non-Profit Revitalization Act of 2013

Governor Cuomo signed New York's Non-Profit Revitalization Act of 2013 into law in December. Most of its provisions take effect July 1, 2014. The new law, which was designed to stimulate New York's not-for-profit industry,…more

Audits, Executive Compensation, Exempt Organizations, Non-Profits, Transparency

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Supreme Court Will Hear Case on ACA Health Insurance Tax Credits

On Nov. 7, 2014, the U.S. Supreme Court announced that it will hear the case of King v. Burwell, one of multiple challenges to the validity of the premium tax credits provided under the Affordable Care Act (ACA) to individuals…more

Affordable Care Act, Halbig v Burwell, Health Insurance Exchanges, Healthcare Reform, Healthcare.gov

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New York Appeals Court Issues Important Rule B And Maritime Corporate Veil-Piercing Decision; Lenient U.S. Maritime Law Veil-Piercing Standard Should Continue To Apply In Most Instances

For the past sixty years, and until January 11, 2013, U.S. federal courts routinely have applied the comparatively expansive (and potentially creditor-friendly) "maritime law of veil piercing" when examining veil-piercing and/or…more

Alter Ego, Corporate Veil, Federal Maritime Commission

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How To Protect Yourself From Identity Theft

This year, I have heard from an increasing number of clients, colleagues and family members wanting advice on how to proactively protect themselves from becoming identity theft victims. Having been through my own personal…more

Identity Theft

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A New Reality for ESOP Fiduciaries - Company Stock Investments for Employee Participants in Retirement Plans of Public and Privately Held Companies Have Different Operating Requirements

For the ESOP fiduciary of a publicly traded employer, the Supreme Court has made clear that non-public insider information is not required to be used in reaching a decision to buy, hold or sell employer securities…more

401k, Employee Benefits, ESOP, FIfth Third Bancorp v Dudenhoeffer, Retirement

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Court Draws Line Against Union Hotel Boycotts: National Labor Relations Act Bans "Secondary Boycotts"

A recent decision of the federal appeals court in Chicago gave hotel operators some welcome protection against union-organized boycotts arising from a labor dispute. In that case, 520 S. Michigan Ave. Associates, Ltd. v. Unite…more

Appeals, Hotels, Labor Disputes, NLRB, Secondary Boycott

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Use of Payroll Cards in Illinois to Come Under Increased Statutory Scrutiny: Gov. Quinn Signs New Amendments into Law on Aug. 6, 2014, Joining a Growing Trend Across the U.S.

Effective Jan. 1, 2015, employers in Illinois will have to follow new requirements in order to pay wages using payroll cards. The Illinois Wage Payment and Collection Act (IWPCA) currently provides for wage payment by check or…more

Compliance, Payroll Cards, Wage and Hour, Wages

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FDA Report to Congress: 1997 Guidance Provides Solid Foundation for 510(k) Modification Decisions

Interested stakeholders have until June 4, 2014, to comment on the FDA's long-anticipated report to Congress that includes its Proposed Policy on the Premarket Notification Requirements for Modified Medical Devices. The FDA will…more

FDA, FDASIA, Medical Devices

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Florida Appellate Court: Open Meetings Law Applies to Collective Bargaining

In a crucial victory for transparency, a Florida state appeals court ruled that the state's open meetings law will not "condone hiding behind federal mediation" when municipal governments try "to thwart the requirements of the…more

Mediation, Municipalities, Open Meetings Act, Public Entities, Settlement Agreements

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Justices Probe Limits of Non-Delegation Doctrine and Express Due Process Concerns

Yesterday, the U.S. Supreme Court heard oral argument in Dep't of Transp. v. Ass'n of Am. Railroads. At issue is whether Congress may grant Amtrak, a private entity created by Congress, the power to co-author regulations…more

Amtrak, DOT v Assoc of American Railroads, Due Process, Non-Delegation Doctrine, Oral Argument

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Ninth Circuit Revises Securities Class Action Lawsuit based on Claims of Fraud

In an unpublished opinion in The Hemmer Group v. Southwest Water Company, No. 11-56154, slip op. at 7-8 (9th Cir. Jun. 7, 2013), the U.S. Court of Appeals for the Ninth Circuit partially revived a securities class action lawsuit…more

Class Action, Financial Statements, Fraud, Pleadings

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New Department of Labor Rule to Limit Live-In Employees Eligible for Exempt Status

The Fair Labor Standards Act (FLSA) has long provided an exemption for overtime wages to employees engaged in "companionship services," such as in-home caretakers who sleep at their patients' homes. Recently, however, the…more

DOL, Employer Liability Issues, Exempt-Employees, FLSA, Home Health Care

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SBA Proposed Rule Outlines New Mentor-Protégé Program for All Small Businesses - Impacts to All SBA Contracting Programs, Including 8(a) Business Development, HUBZone, Women-Owned Small Business (WOSB) and Service-Disabled Veteran Owned (SDVO) Small Business Programs

The Small Business Administration (SBA) issued a long-awaited notice of proposed rule-making (NPRM) providing for a new mentor-protégé program that will be available to all small businesses. The proposed rule was released on…more

HUBZone, Mentor-Protege Program, NPRM, SBA, SDVO

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Employer Wellness Programs: Final Rules Issued Under the Affordable Care Act

Final regulations for wellness programs have been issued to help employers encourage healthier behaviors among their employees…more

ADA, Affordable Care Act, DOL, Final Rules, GINA

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New York Appeals Court Issues Important Rule B And Maritime Corporate Veil-Piercing Decision; Lenient U.S. Maritime Law Veil-Piercing Standard Should Continue To Apply In Most Instances

For the past sixty years, and until January 11, 2013, U.S. federal courts routinely have applied the comparatively expansive (and potentially creditor-friendly) "maritime law of veil piercing" when examining veil-piercing and/or…more

Alter Ego, Corporate Veil, Federal Maritime Commission

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CMS Announces Final Regulatory Changes to Medicare Advantage and Part D

- CMS issues final Medicare Advantage and Part D regulatory changes after a controversial proposed rule was announced earlier this year. - New requirements for the reporting and return of Medicare Advantage and Part D…more

CMS, Final Rules, Healthcare, Medicare, Medicare Advantage

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New and Improved Law to Govern Commercial Common Interest Developments in California

As of January 1, 2014, commercial common interest developments (CIDs) in California are governed by the new Commercial and Industrial Common Interest Development Act. The New Act establishes provisions specific to…more

CID, Local Ordinance, Real Estate Development, Restrictive Covenants

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Some Panhandle Development Permits Eligible for Six-Month Extension Due to Tropical Storm Karen Order

A permit and development order extension opportunity is available until January 6, 2014, for 18 Panhandle counties as a result of the threat posed to Florida by recent tropical storm activity. The extension offers an additional…more

Extensions, Natural Disasters, Permits

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Enhanced Infrastructure Financing Districts (SB 628, Beall) - A New Power Tool for Growth in California

Gov. Jerry Brown signed SB 628 on Sept. 29, 2014, ushering in a long-promised heir to redevelopment agencies. The enrolled statute is now available online and offers much promise for kick-starting dormant projects and land into…more

Economic Development, Infrastructure, Redevelopment

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Perfecting a Lien on a Florida Liquor License

The economy continues to improve, albeit slowly. With improving market conditions comes the opportunity for hospitality businesses, such as restaurants, bars, nightclubs and liquor stores, to emerge and grow. These new and…more

AB Licenses, Borrowers, Creditors, Due Diligence, Hospitality Industry

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Consumer Protection Agencies Agree to Coordinate Investigation Strategy - FTC and CFPB Reauthorize Memorandum of Understanding

On March 12, 2015, the Federal Trade Commission (FTC) and Consumer Financial Protection Bureau (CFPB), the two agencies in charge of the federal government's consumer protection mission, reauthorized their Memorandum of…more

CFPB, Data-Sharing, Enforcement, Enforcement Actions, FTC

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Recent Illinois Foreclosure Decisions Favor Lenders

Since 2008, lenders in Illinois have faced heightened scrutiny and a sharp rise in lender liability claims. Nevertheless, Illinois appellate courts have recently favored lenders by upholding existing statutory protections and…more

Foreclosure, Mortgages, Professional Liability

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D.C. Circuit Upholds FTC Ruling on Deceptive Advertising; Rejects First Amendment Challenge

In a much-awaited decision on Friday, January 30, the D.C. Circuit upheld the Federal Trade Commission’s decision that pomegranate juice maker POM Wonderful LLC engaged in false or misleading advertising by claiming its products…more

Advertising, Clinical Trials, Commercial Speech, False Advertising, First Amendment

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Legal Landscape and Guidance for Companies Involved in Marijuana Activity

Many states now permit the use of marijuana for medical or recreational purposes and the federal government has revised certain enforcement policies related to marijuana-related crimes. The possession, use, manufacture,…more

Congressional Investigations & Hearings, Corporate Counsel, DEA, Drug Manufacturers, Enforcement

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SEC Proposes Rules for Pay Ratio Disclosure

At an open meeting on September 18, 2013, the Securities and Exchange Commission (SEC) approved for public comment proposed "pay ratio" disclosure rules to implement Section 953(b) of the Dodd-Frank Wall Street Reform and…more

CEOs, Disclosure Requirements, Dodd-Frank, Executive Compensation, Pay Ratio

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New Department of Labor Rule to Limit Live-In Employees Eligible for Exempt Status

The Fair Labor Standards Act (FLSA) has long provided an exemption for overtime wages to employees engaged in "companionship services," such as in-home caretakers who sleep at their patients' homes. Recently, however, the…more

DOL, Employer Liability Issues, Exempt-Employees, FLSA, Home Health Care

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In-Patient Hospitalization and "Minimum Value" Under the ACA - Regulators Issue Guidance to Fix Minimum Value Calculator

The Patient Protection and Affordable Care Act – more commonly known as the Affordable Care Act (ACA) – imposes many requirements on group health plans, including, among others, that plans must provide "minimum value" (MV) in…more

Affordable Care Act, Healthcare, Healthcare Reform, Hospitals, Minimum Value Plans

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Governor Signs Bill Regulating Retainage on Private Construction Projects - The New Retainage Law Bolsters the Mass. Construction Industry, Promotes Development and Improves Contractors' Cash Flows

On Aug. 8, 2014, Gov. Deval L. Patrick signed into law "An Act Relative to Fair Retainage Payments in Private Construction." Massachusetts now joins numerous other jurisdictions in the regulation of retainage on private…more

Construction Contracts, Construction Disputes, Construction Litigation, Contractors, Retainage

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Court Upholds Management Deal with Union on Hotel Operations

In an important decision upholding the right of hotels to make pragmatic agreements with unions on hotel operations, the United States District Court for the Southern District of New York dismissed a claim brought by banquet…more

Contract Disputes, Corporate Management, Negotiations, Unions

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International Implementation of EU Emission Trading Scheme Still Unsettled - The Scope of the Emission Trading Scheme Remains Limited to Flights Within the EU

The European Union (EU) adopted a regulation in April 2014 that continued the application of the European Union Emission Trading Scheme (ETS) as to flights operated inside the European Economic Area (EEA). But implementation of…more

Aviation Industry, Emissions Trading System, EU, ICAO

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Physician-Owned Device Companies: OIG Issues Further Guidance

The Office of the Inspector General for the United States Department of Health and Human Services (OIG) issued a Special Fraud Alert on March 26, 2013 (the "2013 POD alert"), that identifies physician-owned distributorships and…more

Anti-Kickback Statute, Fraud, Healthcare, Medical Devices, OIG

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Drones in the United States: What Will It Take to Fly?

The civilian use of unmanned aerial technology — UAVs, UASs or drones — is inevitable, and right now, the government is sorting through regulatory, aviation, telecommunications, First Amendment and privacy issues. Given the…more

Drones, FAA, First Amendment, Right to Privacy, Unmanned Aircraft Systems

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IRS Provides Safe Harbor for Exclusion from Cancellation of Indebtedness Income

Rev. Proc. 2014-20, released on February 5, provides guidance regarding whether debt secured by an interest in a disregarded entity that holds real estate — rather than by the real estate itself — qualifies for the exclusion…more

Debt, Income Taxes, IRS, Property Tax, Safe Harbors

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ASBCA Rejects DCAA's Methodology for Determining Reasonableness of Executive Compensation

A defense contractor recently won a rare victory over the Defense Contract Audit Agency (“DCAA”) in the highly contentious struggle over the allowability of executive compensation costs…more

DCAA, Executive Compensation

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New California Labor and Employment Laws for 2015

Like most recent years, the California Legislature passed and Governor Jerry Brown signed many labor and employment bills into law once again in 2014. Below are highlights of the most significant new laws. Each will become…more

Discrimination, Employer Liability Issues, Employer Mandates, Jerry Brown, Joint Employers

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Religious Institution - January 2015

Experience over the last couple decades teaches that religious institutions face as much or perhaps more liability than secular organizations and, therefore, need to take risk management seriously. From operating their own…more

Alien Tort Statute, Board of Education, Churches, Equal Protection, First Amendment

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Crisis in Ukraine: U.S. Imposes Additional Sanctions Targeting President Putin's Inner Circle

The United States has blocked the assets of a number of senior Russian officials considered to be part of President Putin's inner circle as well as the assets of one Russian bank owned by targeted officials. U.S. companies are…more

Foreign Policy, Russia, Sanctions, Ukraine

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Florida's Amendment 1: Water and Land Conservation Funding Passed by Voters - The 20-Year Program Will Generate Almost $20 Billion in Funding

Florida's Water and Land Conservation Initiative that dedicates billions of dollars to conservation over the next 20 years was ratified by the voters by a wide margin. Voters in all parts of the state and across the political…more

Conservation, Drinking Water, Environmental Policies, Water

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OPR Proposes to Increase CEQA’s Costs, Complexity, and Litigation Risks with SB 743 Implementation

On August 6, 2014, the Governor's Office of Planning and Research (OPR) issued proposed revisions to the California Environmental Quality Act (CEQA) guidelines implementing SB 743 – the Sacramento Kings arena bill – carried by…more

CEQA, CEQA Reform, Environmental Liability, Environmental Policies, Public Transit

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Second Circuit Holds In-House Lawyer Precluded from Blowing Whistle on Former Employer

The Second Circuit issued an opinion tackling the interplay between an attorney's ethical obligation to maintain client confidences and the ability to act as a "whistleblower" to report unlawful conduct to the government. The…more

Anti-Kickback Statute, Confidentiality Rule, Corporate Counsel, False Claims Act, Legal Ethics

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Follow up to Beyond Borders: The Reach of Motorola Mobility LLC v. AU Optronics Corp.

In October, we wrote about the Seventh Circuit’s reconsideration of Motorola Mobility LLC v. AU Optronics Corp., 746 F.3d 842 (7th Cir. 2014) and the reach of the Sherman Act and the Foreign Trade Antitrust Improvements Act…more

Antitrust Injuries, Costco, Foreign Affiliates, FTAIA, Manufacturers

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Virginia Supreme Court Awards Lost Profits for Breach of Non-Compete Provision in Government Subcontract

For the first time, the Supreme Court of Virginia has provided specific guidance on how to calculate damages for the breach of a non-compete/exclusivity provisions of a contract where the breach resulted in the loss of a…more

Accenture, Damages, Defense Logistics Agency, GP Consulting, Non-Compete Agreements

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Supreme Court Limits Protectionism by State Healthcare Licensing Boards - Boards Comprised of Active Medical Providers Are Not Entitled to Immunity from Federal Antitrust Law Unless They Are Actively Supervised by the State

The United States Supreme Court’s recent decision in N.C. State Bd. of Dental Examiners v. Federal Trade Commission, No. 13-534, 2015 WL 773331 (S.Ct. February 25, 2015) makes clear that the anticompetitive actions of state…more

Antitrust Litigation, Dentists, FTC, Immunity, Licensing Rules

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Commission-Based Sales Agreements for Medical Supplies and Equipment: More Whistleblower Activity on the Horizon? - A Wide Range of Industries Should Evaluate Their Compensation Practices to Help Minimize Their Risk of Potential FCA Violations

The common industry practice of compensating independent contractor sales representatives on a "percentage of sales" commission basis may be creating an enhanced risk of False Claims Act liability for illegal kickbacks in light…more

Anti-Kickback Statute, Distributors, Durable Medical Equipment, Enforcement, False Claims Act

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Federal Appellate Court Finds Key U.S. Discovery Tool Can Be Used to Aid Foreign Arbitrations

The Eleventh Circuit, the federal appellate court for the southeast region of the U.S. including Florida, in In re Consorcio Ecuatoriano de Telecomunicaciones S.A., recently decided a case with broad implications for foreign…more

28 U.S.C. §1782, Discovery, Foreign Jurisdictions, International Arbitration, Tribunals

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Supreme Court Issues New "Reasonable Observer" Test on What Constitutes a Vessel

In Lozman v. City of Riviera Beach, Florida, No. 11-626 (January 15, 2013), the U.S. Supreme Court "reformulated" the definition of "vessel." It explained that an objective test, which looks to the physical characteristics of a…more

Reasonable Observer Test, SCOTUS, Vessels

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SBA Proposes Changes to Limitations on Subcontracting and Other Rules

On Dec. 29, 2014, the Small Business Administration (SBA) issued a long-awaited rule to implement certain provisions of the National Defense Authorization Act of 2013 (NDAA). A summary of the NDAA's small business provisions can…more

Federal Contractors, Final Rules, NDAA, SBA, Small Business

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Aviation Defendants Contend with Challenges to Federal Jurisdiction

- An aircraft manufacturer's ability to remove a case to federal court based on admiralty jurisdiction involved consideration of whether "injury became inevitable" while the aircraft was still over water. …more

Aircraft, Asiana, Federal Admiralty Law, Federal Jurisdiction, FSIA

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Legal Duties To Avert, Mitigate, And Recover From Cyber Attacks On The Grid

Introduction. In this brief essay, we have two objectives: first, to provide a glimpse at the complexities that will be faced by electric power utilities, wholesale power generators, power grid operators and their customers if…more

Board of Directors, Cyber Attacks, Cybersecurity, Electricity, FERC

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DOJ Criminal Division Renews Efforts to Investigate Whistleblower Allegations

The Department of Justice (DOJ) has signaled a heightened effort to bring criminal prosecutors into the loop regarding False Claims Act referrals and other whistleblower complaints. In recent remarks at a conference comprised…more

Corporate Counsel, Criminal Prosecution, DOJ, False Claims Act, Health Care Providers

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Attorney Withdrawal: Protect the Client, Obey the Court or Go to Jail? - California Formal Op. No. 2015-192 Addresses the Ethical Tensions in Mandatory Withdrawal Between Duties to the Court and Duties to Maintain Client Confidences

In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a…more

Attorney-Client Privilege, Confidentiality, Ethics, Legal Ethics

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Estate Planning with Portability: Not a Panacea

When Congress resolved the fiscal cliff crisis early this year, it brought permanence to estate, gift and generation-skipping transfer tax laws that had been in flux for over a decade. In short, the American Taxpayer Relief Act…more

American Taxpayer Relief Act, Estate Planning, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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Florida Supreme Court Limits Application of the Economic Loss Rule to Product Liability Cases

Earlier today, the Florida Supreme Court published an important decision in Tiara Condominium Association, Inc., etc. v. Marsh & McLennan Companies, Inc., et al., No. SC10-1022 (March 7, 2013). The case was before the court on a…more

Economic Damages, Economic Loss Doctrine, Insurers

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Fiscal Year 2014 National Defense Authorization Act: A Cut to Contractor Compensation and Other Procurement Provisions

The National Defense Authorization Act for FY 2014 ("NDAA"), signed into law on December 26, 2013, contains a number of provisions relating to government procurement, perhaps most significantly a decrease in the amount of…more

Contractors, Department of Defense, Federal Contractors, Federal Procurement Systems, GAO

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A New Reality for ESOP Fiduciaries - Company Stock Investments for Employee Participants in Retirement Plans of Public and Privately Held Companies Have Different Operating Requirements

For the ESOP fiduciary of a publicly traded employer, the Supreme Court has made clear that non-public insider information is not required to be used in reaching a decision to buy, hold or sell employer securities…more

401k, Employee Benefits, ESOP, FIfth Third Bancorp v Dudenhoeffer, Retirement

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United States v. Windsor: A New Direction in Planning for Same-Sex Couples

On June 26, 2013, the U.S. Supreme Court in United States v. Windsor1 overturned Section 3 of the Defense of Marriage Act ("DOMA"), which had defined marriage as a union between a man and a woman.2 As a result, married same-sex…more

Civil Unions, Divorce, DOMA, Domestic Partnership, Estate Planning

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Supreme Court Limits Protectionism by State Healthcare Licensing Boards - Boards Comprised of Active Medical Providers Are Not Entitled to Immunity from Federal Antitrust Law Unless They Are Actively Supervised by the State

The United States Supreme Court’s recent decision in N.C. State Bd. of Dental Examiners v. Federal Trade Commission, No. 13-534, 2015 WL 773331 (S.Ct. February 25, 2015) makes clear that the anticompetitive actions of state…more

Antitrust Litigation, Dentists, FTC, Immunity, Licensing Rules

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Nasdaq Proposes Amendments to Compensation Committee Member Independence Rules

On November 26, 2013, the NASDAQ Stock Market LLC (Nasdaq) filed a proposed rule change with the Securities and Exchange Commission (SEC) to amend its listing rules relating to compensation committee member independence. The…more

Compensation Committee, Nasdaq, NYSE, SEC

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Raising Loan-to-Value with a Credit Tenant Lease

As the commercial real estate debt market continues to rise, owners and developers are becoming aware of an alternative to more traditional financing products – credit tenant lease finance. In some instances, credit tenant lease…more

Commercial Leases, Commercial Real Estate Market, Tenants

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Delaware Court of Chancery Upholds Forum Selection Provisions in Board-Adopted Bylaws

On June 25, 2013, Chancellor Strine of the Delaware Court of Chancery upheld the statutory and contractual validity of bylaws adopted by a corporation's board of directors that specifically designate an exclusive forum for…more

Board of Directors, Bylaws, Forum, Forum Selection Clause, Jurisdiction

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Landmark Decision Issued on Proper Environmental Baseline under

In a recent landmark California Environmental Quality Act ("CEQA") decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (Smart Rail), the California Supreme Court issued its…more

CEQA, Environmental Policies, Public Transit, Smart Rail

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Chicago Continues to Aggressively Regulate Foreclosed Properties with New Requirements on Tenant Leases

In early June, the City of Chicago passed the "Keep Chicago Renting" ordinance (SO2012-5127), which requires that the owner of foreclosed properties offer existing tenants renewal of their lease or pay expenses to the tenant for…more

Foreclosure, Leases, Local Ordinance, Municipalities, Relocation Assistance

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Some Panhandle Development Permits Eligible for Six-Month Extension Due to Tropical Storm Karen Order

A permit and development order extension opportunity is available until January 6, 2014, for 18 Panhandle counties as a result of the threat posed to Florida by recent tropical storm activity. The extension offers an additional…more

Extensions, Natural Disasters, Permits

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SEC Requires First Admission of Wrongdoing Under Revised Settlement Policy

On August 19, 2013, the SEC announced that it settled with a hedge fund and its manager (the defendants) and required them to admit wrongdoing. In the consent, the defendants admit to a series of facts, including that the…more

Admissions of Liability, Disclosure, Fraud, Investment Funds, Investors

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New Conflict-Minerals Disclosure Rules Impact U.S. and Foreign Companies Using or Supplying Minerals

The Securities and Exchange Commission (SEC) recently approved the much debated "conflict minerals" due diligence disclosure rules originally developed in the Dodd-Frank Wall Street Reform Act of 2010. The rules, which were…more

Conflict Mineral Rules, Corporate Social Responsibility, Disclosure Requirements, Dodd-Frank, SEC

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White House Issues Cybersecurity Executive Order

The long-awaited cybersecurity executive order (EO), which will ultimately establish national cybersecurity standards for critical infrastructure, was issued by President Obama on February 12, 2013. At the same time, the White…more

Barack Obama, Critical Infrastructure Sectors, Cybersecurity, Cybersecurity Framework, DHS

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Commission-Based Sales Agreements for Medical Supplies and Equipment: More Whistleblower Activity on the Horizon? - A Wide Range of Industries Should Evaluate Their Compensation Practices to Help Minimize Their Risk of Potential FCA Violations

The common industry practice of compensating independent contractor sales representatives on a "percentage of sales" commission basis may be creating an enhanced risk of False Claims Act liability for illegal kickbacks in light…more

Anti-Kickback Statute, Distributors, Durable Medical Equipment, Enforcement, False Claims Act

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Revenue Ruling Confirms that IRS Will Recognize Same-Sex Marriages, But Not Civil Unions or Registered Domestic Partnerships

The recent U.S. Supreme Court decision inUnited States v. Windsor overturning Section 3 of the Defense of Marriage Act (DOMA) raised several questions regarding the federal tax treatment of same-sex couples. (See Holland &…more

Civil Unions, DOMA, Domestic Partnership, Employee Benefits, IRS

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Florida Legislature Offers Permit and Development Order Extension Opportunity - Written Notification Due to the Authorizing Agency by Dec. 31, 2014

During the 2014 Regular Session, the Florida Legislature enacted a measure providing holders of certain specific development approvals an opportunity to seek a two-year extension for these approvals. Any building permit and any…more

Building Permits, Construction Industry, Extensions, Real Estate Development, Relief Measures

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Meals and Golf Outings Paid For By Subcontractors May Trigger Double Damages Under Anti-Kickback Act

Federal prime contractors and subcontractors should consider reviewing and updating compliance procedures and employee training relating to entertainment and other business development gratuities in the wake of the Fifth…more

Anti-Kickback Statute, Compliance, Contractors, Meal and Entertainment Expenditures, Subcontractors

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New Jersey Bankruptcy Court Decision Protects Rights of Trademark Licensees - "Free and Clear" Sale of a Trademark or Intellectual Property License Under Section 363 Does Not Trump Rights of Third Party Licensees under Section 365

The United States Bankruptcy Court for the District of New Jersey issued an opinion in In re Crumbs Bake Shop, Inc., No. 14-24287-MBK that provides significant protections for trademark licensees. The opinion was issued on Oct…more

Chapter 11, Commercial Bankruptcy, Executory Contracts, IP License, Licenses

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Proposed Endangered Species Act Regulations Would Revise Rules And Protections Related To "Critical Habitat" - Proposal Would Significantly Expand Critical Habitat Protection Under The Federal Endangered Species Act

HIGHLIGHTS - - The proposed regulations would considerably change the regulatory definitions related to "critical habitat" and "adverse modification," increasing agency discretion to designate and protect areas that do…more

Critical Habitat, ESA, Fish and Wildlife Service, National Marine Fisheries Service, Proposed Regulation

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The New FBI Study on Active Shooters – Is Your Workplace Safe?

The FBI's much anticipated study of active shooter incidents in the United States between 2000 and 2013 was released at the end of 2014. This federal study is the first of its kind and its findings are eye-opening, dispelling…more

Employer Liability Issues, FBI, Law Enforcement, Mass Shootings, School Shootings

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Mexico Energy Reform Update: Key "Secondary Laws" Proposed - President Peña Nieto Sends Senate Laws And Amendments To Bring Private Investment To Oil, Gas And Electricity Industries

A pivotal step in Mexico's game-changing energy reform process was taken this week when President Enrique Peña Nieto asked the Mexican Senate to pass new energy-related laws and amend existing ones…more

Energy, Energy Reform, Mexico, Oil & Gas

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SEC Division of Enforcement Realigning Focus

Andrew Ceresney, the new co-head of the Division of Enforcement for the SEC, recently remarked that the agency is shifting its efforts to focus on areas that have not received as much attention in the years following the…more

Complex Financial Products, Corporate Fraud, Enforcement, False Reporting, SEC

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FCC Approves Five Multipurpose Waivers of New Accessibility Rules

In the first action of its kind, the Federal Communications Commission has approved, in part, five class waivers of its new accessibility rules for advanced communications services ("ACS"), which were adopted last October (the…more

Accessibility Rules, ACS, CVAA, FCC, Multipurpose Waivers

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IRS Announces Easing Of FATCA Enforcement For 2014 And 2015

HIGHLIGHTS - - The IRS has issued a Notice detailing temporary modifications to its enforcement rules having to do with the Foreign Account Tax Compliance Act. - Under IRS Notice 2014-33, 2014 and 2015 will be…more

Banks, FATCA, International Tax Issues, IRS, Nonbank Firms

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The Donald Sterling Case Provides Valuable Trustee Incapacity Insights - Establishing the Most Effective Instruments to Evaluate Trustees Can Be a $2 Billion Issue

The ideal individual trustee has a wide variety of real world experience and judgment that can only be acquired over decades. Thus, many trustees are middle-aged or older at the start of their tenure. While some people remain…more

Fiduciary Duty, Succession Planning, Trustees, Trusts

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Florida Legislature Offers Permit and Development Order Extension Opportunity - Written Notification Due to the Authorizing Agency by Dec. 31, 2014

During the 2014 Regular Session, the Florida Legislature enacted a measure providing holders of certain specific development approvals an opportunity to seek a two-year extension for these approvals. Any building permit and any…more

Building Permits, Construction Industry, Extensions, Real Estate Development, Relief Measures

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Fifth Circuit Limits the Reach of ESA "Take Liability" for State Regulatory Agencies Based on "Proximate Causation" Principles

The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and…more

Endangered Species, Endangered Species Act, ESA Listings, Proximate Cause

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Who's the Boss? In Vance, Supreme Court Defines "Supervisor" for Purposes of Title VII Harassment Claims

Since two landmark U.S. Supreme Court decisions in 1998, the courts have applied different rules to sexual and other discriminatory harassment claims under Title VII of the Civil Rights Act of 1964 ("Title VII") based on whether…more

EEOC, Harassment, Hiring & Firing, SCOTUS, Supervisors

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Congress Speeds Non-Resident Licensing for Insurance Producers

In yet one more assertion of federal power to regulate insurance – which states have long controlled – President Obama signed legislation on Jan. 12 that will dramatically speed the licensing of insurance agents and brokers in…more

Barack Obama, Insurance Agents, Insurance Brokers, Insurance Industry, Licensing Rules

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United States v. Windsor: A New Direction in Planning for Same-Sex Couples

On June 26, 2013, the U.S. Supreme Court in United States v. Windsor1 overturned Section 3 of the Defense of Marriage Act ("DOMA"), which had defined marriage as a union between a man and a woman.2 As a result, married same-sex…more

Civil Unions, Divorce, DOMA, Domestic Partnership, Estate Planning

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Employment Classification Lessons Learned From Scantland v. Jeffry Knight Inc.

A recent Eleventh U.S. Circuit Court of Appeals decision issued a strong admonition to employers: the misclassification of workers as independent contractors rather than employees may have serious financial and operational…more

DOL, Employee Rights, Employer Liability Issues, FLSA, Full-Time Employees

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California Supreme Court Issues CEQA Ruling Regarding Categorical Exemptions - The Practical Result of the Court's Decision Is That Categorical Exemptions Remain a Viable Tool to Review Small Projects Across the State

The California Supreme Court issued its opinion in Berkeley Hillside Preservation v. City of Berkeley (Case No. S201116), overturning the Court of Appeal and charting a course for the future application of categorical exemptions…more

Berkeley Hillside v City of Berkeley, CA Supreme Court, Categorical Exemptions, CEQA, Environmental Impact Report

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IRS Extends FATCA Registration Deadline to May 5, 2014

HIGHLIGHTS: - Foreign financial institutions must perform due diligence to identify their U.S.-owned accounts and report them to the IRS, as well as act as a withholding agent for payments to other foreign entities…more

Banks, Due Diligence, FATCA, FFI, Foreign Banks

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FCC Regulations On Phone Call Captioning Held To Be Arbitrary and Capricious

On June 20, 2014, the D.C. Circuit Court of Appeals vacated two FCC regulations on phone call captioning technology designed for the hearing impaired, holding that the rules were made arbitrarily and capriciously in violation of…more

Administrative Procedure Act, CaptionCall, Disability, FCC, Technology

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No Claim Is Too Small: Copyright Office Proposes Small Claims Tribunal

The U.S. Copyright Office has proposed legislation that would enable copyright owners to enforce their rights in a streamlined alternative to federal court litigation designed for smaller-value claims. …more

Copyright, Copyright Office, Small Claims Court

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The Fish Tale and the Supreme Court: How Applying Sarbanes-Oxley to Missing Grouper Has Raised Questions of Overcriminalization

The Issues - On November 5, 2014, the Supreme Court heard arguments in Yates v. United States of America. In layman's terms, the issue is whether an Enron-era antishredding provision of the Sarbanes-Oxley Act was wrongly…more

Destruction of Evidence, Evidence, Fishing Industry, Sarbanes-Oxley, SCOTUS

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Advanced Energy Manufacturing Tax Credits Available

The Department of Energy and Department of Treasury announced on February 7, 2013, that they have $150 million in leftover/returned tax credits available for Clean Energy Manufacturers under the Section 48C Advanced Energy…more

American Taxpayer Relief Act, Clean Energy, DOE, Manufacturers, Renewable Energy

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Florida Appellate Court: Open Meetings Law Applies to Collective Bargaining

In a crucial victory for transparency, a Florida state appeals court ruled that the state's open meetings law will not "condone hiding behind federal mediation" when municipal governments try "to thwart the requirements of the…more

Mediation, Municipalities, Open Meetings Act, Public Entities, Settlement Agreements

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Division of Corporation Finance Releases New CDIs

The SEC recently released new Compliance and Disclosure Interpretations (CDIs) on a variety of topics under the Securities Act, the Exchange Act and Regulation S-K. A brief summary of some of these new CDIs is presented below…more

Compliance, Disclosure Requirements, Executive Compensation, Regulation S-K, Rule 144A

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NLRB Forces Restaurant to Allow Posters Insinuating Germ-Infested Food - Section 7 of the National Labor Relations Act Guarantees All Workers the Right to Engage in "Concerted Activities for … Mutual Aid or Protection"

The Jimmy John's sandwich franchise must have been surprised to learn that it had violated federal labor law when its disciplined employees who had posted hundreds of signs around its outlets suggesting that its sandwiches might…more

Employee Rights, NLRA, NLRB, Restaurant Industry, Unions

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Reforma Tributaria – Ley 1739 de 2014

El pasado 23 de diciembre de 2014 se aprobó la reforma tributaria contenida en la Ley 1739 de 2014, con el fin de afrontar múltiples compromisos fiscales en vigencias futuras. La norma en mención comprende de manera general la…more

Columbia, Tax Reform

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Multas por Incumplimiento de las Normas de Seguridad y Salud en el Trabajo

El Ministerio del Trabajo mediante el decreto 472 de 2015 reglamentó los criterios de graduación de las multas a las compañías, conforme a la obligación impuesta por el artículo 13 de la ley 1562 de 2012, cuando estas infrinjan…more

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2013 Florida Legislative Session Recap

Prior to the start of the 2013 Florida legislative session, President Gaetz and Speaker Weatherford outlined a joint agenda that included tackling ethics, elections, campaign finance, state pensions and higher education. The…more

New Legislation, Proposed Legislation, State Budgets

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New ITIN Procedures Complicate U.S. Tax Compliance

On June 22, 2012, the IRS announced interim changes, including more stringent requirements, to its procedures for issuing new individual taxpayer identification numbers (ITINs). ITINs are nine-digit numbers issued for tax…more

Foreign Taxpayers, IRS, ITIN

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Conflict Minerals Reporting Requirements

International Trade Partner Ron Oleynik and Public Affairs Advisor Paolo Mastrangelo succinctly explain the due diligence process for companies with conflict minerals in their products and the need for transparency in their…more

Conflict Mineral Rules, Disclosure Requirements, Form SD, Reporting Requirements

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New Ethics Law Could Affect Companies Doing Business with Florida State Agencies and Local Governments

The Florida Legislature recently passed Senate Bill 2, a wide-ranging ethics law that could affect companies that do business with state agencies and local governments in Florida…more

Ethics, Penalties, Reporting Requirements, Solicitation Provisions, Vendors

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DDTC Ups the Ante on Data Gathering from ITAR-Registered Companies and Introduces Electronic Filing

Pursuant to the International Traffic in Arms Regulations (ITAR), the U.S. Department of State Directorate of Defense Trade Controls (DDTC) has issued a revised Statement of Registration (DS-2032) form and now allows it to be…more

DDTC, Disclosure Requirements, Electronic Filing, ITAR, Registration

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Condo Hotel Branding: Benefits and New Risks with Rule 506(c) - Condo Hotel Projects Sold as Exempt Securities Require Informed Decisions by Brand Operators

Condominium hotels are a subject of renewed interest, buoyed by the rising tide for real estate generally. These projects are also encouraged by favorable trends for financing under the SEC's new Rule 506(c) that allows "general…more

Commercial Real Estate Market, Condominiums, Crowdfunding, Financing, General Solicitation

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A New Reality for ESOP Fiduciaries - Company Stock Investments for Employee Participants in Retirement Plans of Public and Privately Held Companies Have Different Operating Requirements

For the ESOP fiduciary of a publicly traded employer, the Supreme Court has made clear that non-public insider information is not required to be used in reaching a decision to buy, hold or sell employer securities…more

401k, Employee Benefits, ESOP, FIfth Third Bancorp v Dudenhoeffer, Retirement

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What Employers Need to Know About the Expanded Massachusetts Parental Leave Act

On Jan. 7, 2015, then-Governor Deval Patrick signed the Parental Leave Act into law, extending parental leave to male employees in connection with the birth or adoption of a child. The amendment – which becomes effective on Apr…more

Amended Legislation, Deval Patrick, Employee Rights, Parental Leave

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Fair Use and the Digital Campus: Court Says University Doesn’t Need Permission from Publishers to Give Students Course Packs Via E-Reserve System

Classroom interests and publishing house interests often conflict with respect to access to educational content. Educational institutions (among others) support open or low-cost access to this content, citing the value of…more

Cambridge University Press, Copyright, Fair Use, Royalties

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Florida Judge Quashes Subpoena in Political Taping Case

In a criminal case arising from the secret recording of a private conversation, Florida prosecutors issued a subpoena to compel a news reporter to testify in a case against a former aide to Lt. Gov. Jennifer Carroll. The…more

Absolute Privilege, First Amendment, Journalists, Motions to Quash, Subpoenas

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Obama Administration Releases Proposed Rule on "Waters of the United States"

The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency released a proposed rule that will impact many segments of the U.S. economy, greatly expanding future permitting requirements. The proposed rule will…more

Clean Water Act, EPA, Jurisdiction, US Army Corps of Engineers, Waters of the United States

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DOJ Shifts Stance on False Statements Prosecutions - A Change That Could Have a Major Impact on Future White Collar Investigations and Prosecutions

The U.S. Department of Justice (DOJ) recently adopted a more defense-friendly position on criminal prosecutions under a commonly used federal charging statute, Section 1001. This statute makes it a crime to "knowingly and…more

Criminal Prosecution, DOJ, Enforcement, Enforcement Actions, False Statements

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New California Labor and Employment Laws for 2015

Like most recent years, the California Legislature passed and Governor Jerry Brown signed many labor and employment bills into law once again in 2014. Below are highlights of the most significant new laws. Each will become…more

Discrimination, Employer Liability Issues, Employer Mandates, Jerry Brown, Joint Employers

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Massachusetts Employers May Be Liable to Out-of-State Employees Misclassified as Independent Contractors

Massachusetts employers have long labored under the strictures of the Massachusetts independent contractor statute, General Laws c. 149, §148B, which makes it exceptionally difficult to engage workers in Massachusetts as…more

Employer Liability Issues, Independent Contractors, Misclassification, Unpaid Overtime, Unpaid Wages

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CMS Proposes Changes to 2016 Star Rating Calculations - Medicare Advantage and Medicare Part D Prescription Drug Plans May Be Affected

The Centers for Medicare and Medicaid Services (CMS or the Agency) released a memorandum requesting comments regarding proposed changes to the 2016 star ratings systems for Medicare Advantage Plans (MA Plans) and Medicare Part D…more

CMS, Comment Period, Health Insurance, Medicare, Medicare Part D

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California Supreme Court Issues CEQA Ruling Regarding Categorical Exemptions - The Practical Result of the Court's Decision Is That Categorical Exemptions Remain a Viable Tool to Review Small Projects Across the State

The California Supreme Court issued its opinion in Berkeley Hillside Preservation v. City of Berkeley (Case No. S201116), overturning the Court of Appeal and charting a course for the future application of categorical exemptions…more

Berkeley Hillside v City of Berkeley, CA Supreme Court, Categorical Exemptions, CEQA, Environmental Impact Report

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United States v. Windsor: A New Direction in Planning for Same-Sex Couples

On June 26, 2013, the U.S. Supreme Court in United States v. Windsor1 overturned Section 3 of the Defense of Marriage Act ("DOMA"), which had defined marriage as a union between a man and a woman.2 As a result, married same-sex…more

Civil Unions, Divorce, DOMA, Domestic Partnership, Estate Planning

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OPIC Issues Its First Green Guaranties – An Innovative Financing Program - The Guaranties Are Intended to Bridge the Gap Between Private Capital and Investment in Renewable Energy and Sustainable Development

The Overseas Private Investment Corporation (OPIC) has issued its first "Green Guaranties" to provide financing for a project considered to be in alignment with Green Bond Principles. The U.S. government's development…more

Foreign Investment, Go Green Bonds, OPIC, Renewable Energy

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Circuit Court Provides Clarification of Pleading Standards in FCA Cases - The Court's Holding Details Requirements for Alleging the Knowledge and Falsity Elements of an FCA Claim

A recent U.S. Court of Appeals case from the Seventh Circuit has brought further insight into the heightened pleading standard required under the False Claims Act (FCA). The case, Thulin v. Shopko Stores Operating Co., LLC, 7th…more

False Claims Act, Medicaid, Pharmacies, Pleading Standards

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FAA Proposes Commercial Drone Rules As White House Issues Executive Order - Pending Unmanned Aircraft Systems (UAS) Rules Would Ease Some Restrictions; Privacy to Be Addressed with Stakeholder Input

The Federal Aviation Administration (FAA) released its long-awaited Notice of Proposed Rulemaking (NPRM) on Sunday, Feb. 15, 2015 for the commercial use of small unmanned aircraft systems (UAS), commonly referred to as "drones."…more

Drones, Executive Orders, FAA, NPRM, Privacy Concerns

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The Donald Sterling Case Provides Valuable Trustee Incapacity Insights - Establishing the Most Effective Instruments to Evaluate Trustees Can Be a $2 Billion Issue

The ideal individual trustee has a wide variety of real world experience and judgment that can only be acquired over decades. Thus, many trustees are middle-aged or older at the start of their tenure. While some people remain…more

Fiduciary Duty, Succession Planning, Trustees, Trusts

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Recent Federal Court Rulings Favor Airlines in Frequent-Flyer Cases

In April 2014, the U.S. Supreme Court held that the Airline Deregulation Act (ADA) preempted a frequent flyer program member's common law claim for breach of the implied covenant of good faith and fair dealing because the claim…more

Airline Deregulation Act, Airlines, American Airlines, Class Action, Contract Disputes

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Court Holds the Chancery Court's Nonpublic Arbitrations Violate the First Amendment

In April 2009, the Delaware General Assembly amended the rules governing disputes in the Court of Chancery to give the court power to arbitrate business disputes before a member of the Court of Chancery. The arbitration required…more

Arbitration, First Amendment

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Tribal General Welfare Exclusion Act: New Law Supersedes IRS Guidance - H.R. 3043 Allows Tribes More Latitude in Social Programs

On Sept. 26, 2014, President Obama signed into law a measure that excludes from taxable income various general welfare payments to members of Indian tribes. One of the last pieces of legislation agreed upon by the U.S…more

General Welfare Exclusion, IRS, Native American Issues, Tribal Governments

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New York Appeals Court Issues Important Rule B And Maritime Corporate Veil-Piercing Decision; Lenient U.S. Maritime Law Veil-Piercing Standard Should Continue To Apply In Most Instances

For the past sixty years, and until January 11, 2013, U.S. federal courts routinely have applied the comparatively expansive (and potentially creditor-friendly) "maritime law of veil piercing" when examining veil-piercing and/or…more

Alter Ego, Corporate Veil, Federal Maritime Commission

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Hotel Owner/Operator Disputes: To Mediate or Not to Mediate

That is the question. The answer is really more about how to mediate, rather than whether to mediate. It’s also about when to mediate..…more

Hotels, Mediation

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FAA Ramps Up Drone Ban Enforcement by Enlisting State/Local Police Assistance - FAA Guidance Document Identifies Specific Actions for Police Agencies to Take for Unauthorized UAS Use

The Federal Aviation Administration (FAA) has issued new written guidance that enlists police departments to help enforce the government's ban on the commercial use of unmanned aerial vehicles (UAS) in the national air space…more

Air Space, Commercial Use, Drones, Enforcement Guidance, Exemptions

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The American Taxpayer Relief Act of 2012: What It Means for You

In the final hour of January 1, 2013, Congress passed The American Taxpayer Relief Act of 2012 (the "Act"), which in part addressed the dramatic sunset of favorable federal estate, gift and generation-skipping tax exemption…more

American Taxpayer Relief Act, Capital Gains, Dividends, Estate Tax, Fiscal Cliff

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A New Reality for ESOP Fiduciaries - Company Stock Investments for Employee Participants in Retirement Plans of Public and Privately Held Companies Have Different Operating Requirements

For the ESOP fiduciary of a publicly traded employer, the Supreme Court has made clear that non-public insider information is not required to be used in reaching a decision to buy, hold or sell employer securities…more

401k, Employee Benefits, ESOP, FIfth Third Bancorp v Dudenhoeffer, Retirement

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Methodology for Measuring National Content in Mexican Hydrocarbon Sector - The Three Legal Schemes Impacted in the National Oil Industry by This Methodology Are Allocations, Contracts for Exploration, and Extraction and Permits

The "Methodology for measuring national content in Allocations and Contracts for Exploration and Extraction of Hydrocarbons, as well as for the Permits in the Hydrocarbons Industry"was published on Nov. 13, 2014,in Diario…more

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U.S. Treasury and Commerce Release Revised Cuba Sanctions Regulations

A pre-release of the revised regulations from the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce Bureau of Industry and Security (BIS) identifies the extensive changes in…more

BIS, Cuba, Foreign Relations, OFAC, Sanctions

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Crisis in Ukraine: U.S. Imposes Additional Sanctions Targeting President Putin's Inner Circle

The United States has blocked the assets of a number of senior Russian officials considered to be part of President Putin's inner circle as well as the assets of one Russian bank owned by targeted officials. U.S. companies are…more

Foreign Policy, Russia, Sanctions, Ukraine

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IRS Changes the Streamlined Filing Compliance Procedures and Offshore Voluntary Disclosure Program (OVDP) - Determining Your Most Advantageous Route Is Imperative

The IRS announced substantial changes to both the Streamlined Filing Compliance Procedures for Non-Resident, Non-Filer Taxpayers and the Offshore Voluntary Disclosure Program (OVDP) on June 18, 2014…more

Compliance, FATCA, FBAR, IRS, OVDP

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Issuance of the Mexican Secondary Laws in Connection with the Constitutional Energy Reform

As of Aug. 11, 2014, all the secondary laws pertaining to the Mexican Energy Reform (published Dec. 20, 2013), were published in the Mexican Official Gazette. The scope of the secondary laws published on Aug. 11, 2014,…more

Energy Reform, Mexico, Oil & Gas

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IRS Unveils New Compliance Program

According to the Miriam Webster dictionary, credibility is defined as "the quality or power of inspiring belief." When IRS Commissioner John Koskinen took office, one of his many roles involved trying to restore the integrity of…more

Compliance, FBAR, Income Taxes, International Tax Issues, IRS

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Decisions Do Not Apply "Jewel Doctrine" to Departed Partners' Fees - Legal Fees Earned by Departed Partners in Now-Defunct Law Firms Determined Not to Be Property of the Bankrupt Firm

A California District Court recently held that a bankruptcy trustee could not claim a property interest in the hourly fee matters pending at the now-dissolved Heller Ehrman LLP law firm. This June California decision was…more

Business Assets, Commercial Bankruptcy, Dissolution, Heller Ehrman, Insolvency

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Tribal General Welfare Exclusion Act: New Law Supersedes IRS Guidance - H.R. 3043 Allows Tribes More Latitude in Social Programs

On Sept. 26, 2014, President Obama signed into law a measure that excludes from taxable income various general welfare payments to members of Indian tribes. One of the last pieces of legislation agreed upon by the U.S…more

General Welfare Exclusion, IRS, Native American Issues, Tribal Governments

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Treaty Preempts Discrimination and Contract Claims From Seat Assignment Dispute - Although the Complaint Did Not Plead a Montreal Convention Cause of Action, the Court Found Plaintiff’s Claims Were Governed Exclusively by the Convention

The U.S. District Court for the District of Columbia granted an airline's pre-answer motion to dismiss a passenger's discrimination and breach of contract claims arising from the airline's alleged failure to assign the passenger…more

Airlines, Breach of Contract, Discrimination, Montreal Convention

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The Legal and Financial Consequences of Moving to a More Contractor Friendly No-Damage-For-Delay Cause

According to the New York City Building Congress, Manhattan is poised to add roughly nine million square feet of new office space to its inventory between 2013 and 2015. If realized, this would be the highest volume of new…more

Construction Contracts, Contractors, No Damage For Delay, Subcontractors

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New ITIN Procedures Complicate U.S. Tax Compliance

On June 22, 2012, the IRS announced interim changes, including more stringent requirements, to its procedures for issuing new individual taxpayer identification numbers (ITINs). ITINs are nine-digit numbers issued for tax…more

Foreign Taxpayers, IRS, ITIN

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Court Upholds Endangered Species Act Incidental Take Permit for Windfarm

On March 17, 2015, Judge Leon of the United States District Court for the District of Columbia issued a memorandum opinion upholding the United States Fish and Wildlife Service's (USFWS) issuance of an incidental take permit for…more

Endangered Species Act, Fish and Wildlife Service, Incidental Take Permits, Wind Farm

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Prior Restraint Vacated in Lawsuit by Haiti's Prime Minister

A federal district judge in Miami vacated a prior restraint forbidding a U.S.-based Haitian journalist from ever publishing anything relating to the prime minister of Haiti. Prime Minister Laurent Lamothe sued Leo Joseph for…more

Defamation, Free Speech, Prior Restraint

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$41.7 Million Jury Verdict Against School Triggers Scrutiny of Travel Abroad Programs

The $41.7 million jury verdict last week against The Hotchkiss School in Lakeville, Connecticut sent shock waves through the independent school community. A 15-year-old Hotchkiss student suffered insect bites on a…more

Jury Verdicts, School Safety, Travel

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City of Ceres: California Appeals Court CEQA Decision Complicates Whether Agencies' Communications with Developers Are Privileged

On July 8, 2013, the Fifth District of the California Court of Appeal issued Citizens for Ceres v. Super. Ct. of Stanislaus County (Case No. F065690 (Cal. Ct. App. 5th, July 8, 2013)) (Ceres), a perplexing opinion holding that…more

Attorney-Client Privilege, CEQA, Common-Interest Privilege

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Issuance of the Mexican Secondary Laws in Connection with the Constitutional Energy Reform

As of Aug. 11, 2014, all the secondary laws pertaining to the Mexican Energy Reform (published Dec. 20, 2013), were published in the Mexican Official Gazette. The scope of the secondary laws published on Aug. 11, 2014,…more

Energy Reform, Mexico, Oil & Gas

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New and Improved Law to Govern Commercial Common Interest Developments in California

As of January 1, 2014, commercial common interest developments (CIDs) in California are governed by the new Commercial and Industrial Common Interest Development Act. The New Act establishes provisions specific to…more

CID, Local Ordinance, Real Estate Development, Restrictive Covenants

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Revenue Ruling Confirms that IRS Will Recognize Same-Sex Marriages, But Not Civil Unions or Registered Domestic Partnerships

The recent U.S. Supreme Court decision inUnited States v. Windsor overturning Section 3 of the Defense of Marriage Act (DOMA) raised several questions regarding the federal tax treatment of same-sex couples. (See Holland &…more

Civil Unions, DOMA, Domestic Partnership, Employee Benefits, IRS

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Second Circuit Ends "Doing Business" Test in New York for General Jurisdiction - The Court Adopts the "Essentially at Home" Test Limiting New York Courts’ General Jurisdiction Over Foreign Corporations

In September 2014, the Second Circuit abrogated the nearly century-old "doing business" test used by New York courts in deciding whether general jurisdiction exists over foreign corporations. In Gucci America, Inc. v. Weixing…more

Banks, Doing Business, Foreign Corporations, Jurisdiction

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Placement of Checkbox Can Make or Break a Clickwrap Agreement

The enforceability of a wrap agreement (browsewrap, clickwrap and shrinkwrap) can often turn on what to the untrained eye may be mere minutiae. Such minutiae can include the nuances of the design of a website. For example, in…more

Browsewrap Agreement, Clickwrap Agreements, Website Design, Websites

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Delaware Court of Chancery Upholds Forum Selection Provisions in Board-Adopted Bylaws

On June 25, 2013, Chancellor Strine of the Delaware Court of Chancery upheld the statutory and contractual validity of bylaws adopted by a corporation's board of directors that specifically designate an exclusive forum for…more

Board of Directors, Bylaws, Forum, Forum Selection Clause, Jurisdiction

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District Court Reaffirms that Service Provider will be Granted Immunity under Section 230 of the Communications Decency Act

Via Section 230, the Communications Decency Act (CDA) provides broad immunity for service providers, hosts and website operators for claims stemming from their publication of information created by third parties. Specifically,…more

Communications Decency Act, Hewlett-Packard, Internet Service Providers

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Attorney Withdrawal: Protect the Client, Obey the Court or Go to Jail? - California Formal Op. No. 2015-192 Addresses the Ethical Tensions in Mandatory Withdrawal Between Duties to the Court and Duties to Maintain Client Confidences

In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a…more

Attorney-Client Privilege, Confidentiality, Ethics, Legal Ethics

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FAA Proposes Commercial Drone Rules As White House Issues Executive Order - Pending Unmanned Aircraft Systems (UAS) Rules Would Ease Some Restrictions; Privacy to Be Addressed with Stakeholder Input

The Federal Aviation Administration (FAA) released its long-awaited Notice of Proposed Rulemaking (NPRM) on Sunday, Feb. 15, 2015 for the commercial use of small unmanned aircraft systems (UAS), commonly referred to as "drones."…more

Drones, Executive Orders, FAA, NPRM, Privacy Concerns

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Massachusetts Court Awards Attorneys' Fees for In-House Counsel's Work: The State Is the Latest To Recognize Shifting of In-House Counsel Fees

In a question of first impression, the Massachusetts Court of Appeals recently held that trial court judges have discretion to award attorneys' fees for work performed by in-house counsel for claims brought under the state's…more

Attorney's Fees, Unfair Trade Practices Act

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Estate Planning with Portability: Not a Panacea

When Congress resolved the fiscal cliff crisis early this year, it brought permanence to estate, gift and generation-skipping transfer tax laws that had been in flux for over a decade. In short, the American Taxpayer Relief Act…more

American Taxpayer Relief Act, Estate Planning, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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IRS Extends FATCA Registration Deadline to May 5, 2014

HIGHLIGHTS: - Foreign financial institutions must perform due diligence to identify their U.S.-owned accounts and report them to the IRS, as well as act as a withholding agent for payments to other foreign entities…more

Banks, Due Diligence, FATCA, FFI, Foreign Banks

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FAA Proposes Commercial Drone Rules As White House Issues Executive Order - Pending Unmanned Aircraft Systems (UAS) Rules Would Ease Some Restrictions; Privacy to Be Addressed with Stakeholder Input

The Federal Aviation Administration (FAA) released its long-awaited Notice of Proposed Rulemaking (NPRM) on Sunday, Feb. 15, 2015 for the commercial use of small unmanned aircraft systems (UAS), commonly referred to as "drones."…more

Drones, Executive Orders, FAA, NPRM, Privacy Concerns

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Court Rules Reporting on Teen's Felony Cyberbullying Case Privileged

The U.S. District Court for the Northern District of Florida in Jeter v. McKeithen et al., dismissed defamation and defamation by implication claims brought by a teenager against Florida television station WJHG challenging…more

Confidentiality, Criminal Prosecution, Cyberbullying, Defamation, Facebook

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Ninth Circuit: CDA Does Not Bar Claims for Failure to Warn

Reversing the dismissal of a negligent failure to warn action, the Ninth Circuit Court of Appeals carved out a key exception to the immunity afforded to website operators under the Communications Decency Act (CDA)…more

Appeals, Communications Decency Act, Failure To Warn, Publishers, Website Owner Liability

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The Most Important Issue Involving Superfish Isn’t Superfish

Many of the media reports around the recent Superfish debacle completely miss the main issue. First, though, let's recap what's been alleged about Superfish and similar types of pre-installed software. The allegation is…more

Advertising, Facebook, Mobile Apps, Online Advertisements, Social Networks

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New Jersey Bankruptcy Court Decision Protects Rights of Trademark Licensees - "Free and Clear" Sale of a Trademark or Intellectual Property License Under Section 363 Does Not Trump Rights of Third Party Licensees under Section 365

The United States Bankruptcy Court for the District of New Jersey issued an opinion in In re Crumbs Bake Shop, Inc., No. 14-24287-MBK that provides significant protections for trademark licensees. The opinion was issued on Oct…more

Chapter 11, Commercial Bankruptcy, Executory Contracts, IP License, Licenses

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Ethical Issues For White Collar Defense And Investigations Lawyers - Part 1 of 3: Joint Defense Agreements

Recent corporate scandals have made effective and honest corporate governance the chief priority for every company. Proactive and incisive white collar defense counsel in this area is a must. Reacting swiftly to serious problems…more

Corporate Governance, Criminal Prosecution, Defense Strategies, Ethics, Government Investigations

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The Tyranny of the Abutter?

The time spent deconstructing the writings of Alexis de Tocqueville has to rank among the least gratifying memories of every former political science major. De Tocqueville's most notable work, Democracy in America, expounded…more

Proposed Legislation, Real Estate Development

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Recent HHS Settlement Highlights Importance of Updating HIPAA Compliance Programs

On December 8, 2014, the U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) announced a resolution agreement with Anchorage Community Mental Health Services, Inc. (ACMHS). The agreement, which…more

Business Associates, Corporate Counsel, Covered Entities, OCR, Patient Confidentiality Breaches

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The National Labor Relations Board: 2014 Year in Review - The NLRB's Expansion of Employee Rights Under the National Labor Relations Act Affects Both Union and Non-Union Workplaces

In 2014, the National Labor Relations Board (NLRB or Board) scrutinized employer policies and practices, protected employee use of social media and employers' email systems to organize and engage in protected concerted activity,…more

Email Policies, Employer Liability Issues, Employer Mandates, Employment Policies, NLRA

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Under FLSA Section 203(o) Does the Term "Changing Clothes" Include the Time a Manufacturing Employee Spends Putting On and Taking Off Safety Equipment?

For minimum wage and over-time purposes, Section 203(o) of the Fair Labor Standards Act (FLSA) states that "hours worked" does not include time spent "changing clothes" if that time is excluded from working time by the express…more

Collective Bargaining, FLSA, Protective Gear, Safety Equipment, Sandifer v U.S. Steel Corp

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Auditing the Adults: U.S. Insurance Regulators' Increased Focus on Non-Insurer Parents

Originally published in LIMRA Regulatory Review on 1/2013 If there is one change in U.S. insurance regulation that directly resulted from the financial crisis of 2008, it is the expansion of regulatory oversight of the…more

Affiliates, Audits, Compliance, Confidentiality, Enterprise Risks

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SEC Files Initial Brief in Conflict Minerals Rule Case

The SEC recently filed its initial brief in the case pending in the United States Court of Appeals for the D.C. Circuit in which the National Association of Manufacturers, United States Chamber of Commerce, and Business…more

Conflict Mineral Rules, Consumer Protection Act, De Minimis Claims, Dodd-Frank, First Amendment

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National Defense Authorization Act of 2013 Includes Significant Small Business-Related Provisions

The National Defense Authorization Act of 2013 (“NDAA”), which the President signed into law on January 3, 2013, includes significant reforms to the rules for contracting with small businesses…more

In-Sourcing, Mentor-Protege Program, NDAA, Safe Harbors, SBA

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